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Analysis Of "Necessity" Clauses Under Article XX Of GATT

Posted on:2016-06-09Degree:MasterType:Thesis
Country:ChinaCandidate:L ZhuFull Text:PDF
GTID:2296330479988219Subject:Law
Abstract/Summary:PDF Full Text Request
The "necessity" clauses under Article XX of GATT1994, which are preserved and inherited from GATT1947, have been set aside for nearly half a century until the last two decades. Since 1990 s, the "necessity" clauses have been continuously invoked by members of WTO in relevant cases during the dispute settlement. Notwithstanding the purpose of WTO law is to promote and maintain the trade equality and trade liberalization in general and to standardize the trade restriction, however, as part of the general exemption of GATT, the "necessity" clauses have made it justified for a member to take measures that may be in violation with the obligations under GATT by invoking the special objectives stipulated therein. Such objectives include protecting the public morals, protecting human, animal or plant life and health, and securing compliance with laws and regulations consistent with GATT.Thus, there arises the key issue as how to balance the merits of trade liberalization pursued by WTO laws and the "necessity" exemptions expressly set out under Article XX of GATT, so as to keep the general principle of WTO from erosion by the abuse of such exemptions aforementioned when taking measures that violate the obligations under GATT. Nevertheless, the content of "necessity" clauses is so concise and misty that controversy arises from case to case, and discrepancy does exist with regard to the interpretation thereof among the parties involved, the panel and/or the appellate body. Therefore, there leaves a blank space to further study the issues under “necessity” clauses of Article XX.During the review of relevant articles, it is apparently known that the focus of international research on the "necessity" has been shifted from the WTO laws to the resolution of investment dispute with the rule and underlying logic generated from the analysis of "necessity" taken under WTO. However, domestic research is still limited to a particular case or one of the "necessity" clauses without a comparison among the three clauses under Article XX of GATT. Therefore, it is of great significance to summarize the general rule for the analysis of "necessity" clauses.Thereby, this article raises the issue to be studied, as the concise and misty of "necessity" clauses, by introducing the exemption clauses under WTO, then it points out that clarifying and understanding the "necessity" clauses is subject to the treaty interpretation under WTO. In the premise, it is better to review the standards and rules in respect of treaty interpretation prior to the analysis of "necessity" clauses. This article then points out that the standards used for the legal interpretation shall be applicable to treaty interpretation, as the latter is part of the former in the broad sense. Due to the speciality of WTO laws, it is better to combine the explicit rules of WTO regarding to the interpretation of WTO laws with the general rules of legal interpretation and treaty interpretation so as to define and interpret relevant WTO laws involved. Thereupon, it points out that the purpose of treaty interpretation under WTO is to make the WTO laws serve a legitimate effect by taking account of the purpose of WTO laws and the rule of good faith, meanwhile, without derogating the rights or increasing the obligations of any member.It is well acknowledged that the semantics of particular words has always been the basis to fully understand the stipulation contained in a law or a treaty, whether referred to the legal interpretation in general or the specific treaty interpretation. Having considered that the semantic interpretation may contribute to the well understanding and invoking of "necessity" clauses, this article clarifies and defines the meaning of "necessity" clauses based on the principle of semantic interpretation at first. Upon the aforementioned analysis, this article points out that a similar structure does contained in those provisions. However, due to the speciality of the interpretation under WTO laws, semantic interpretation may not exactly reveals the essence of "necessity" clauses, indeed DSB has combined a variety of methods to seek for the true meaning contained therein. Thereupon, it is of great significance to exam and explore the general rules regarding to the interpretation and analysis of "necessity" clauses set out in reports circulated by the panel and/or the appellate body of DSB.To this end, this article takes analysis of relevant cases adopted by DSB to make a summary of the practice of invoking "necessity" clauses in a chronological order. Upon analysis of the relevant cases, this article points out that there does exist a general rule applicable to the interpretation and analysis of "necessity" clauses under GATT. There is no doubt that, as a rule, invoking the "necessity" clauses shall be subject to the following criteria:(i) confirming the measures at issue violating the obligations under GATT(which is the precondition for the application of Article XX under GATT);(ii) verifying the compliance with the "necessity" clauses; and(iii) not being in violation with the chapeau of Article XX. This rule has been improved by the panel and/or the appellate body from one case to another with the basis of a "two-tiered" structure. This article, by introducing five relevant cases as US--Standards for Reformulated and Conventional Gasoline, European Communities--Measures Affecting Asbestos and Asbestos-- Containing Products, Korea-- Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Brazil-- Measures Affecting Imports of Retreaded Tyres and China-- Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, demonstrates the opinions of the panel and/or the appellate body in respect of the recognition, weighing and balancing of relevant facts and proof with regard to “necessity” clauses under the rule aforementioned.The purpose of legal interpretation is to apply relevant provisions in practice. The interpretation and analysis of "necessity" clauses serve the same role as to be invoked by a member in dispute settlement as the justified reason for the violation of obligations under GATT. And the adopted cases have shown that the panel and/or the appellate body will weigh and balance relevant evidence and facts to determine whether a measure at issue falls within the scope of "necessity" clauses. Being the same as domestic procedure law, burden of proof is of great importance to verify the fact during dispute settlement under WTO. However, WTO laws do not provide with a comprehensive rule governing the burden of proof despite a few general rules, thus, it is of great importance to clarify such general rules contained therein. Indeed, the panel and/or the appellate body have developed a set of rules and standards thereof through the interpretation of the limited rules set out in DSU and relevant agreements. These rules will benefit a lot to the invoking of "necessity" clauses and the confirmation on the essential factors to be proved and the completion of burden of proof.The faultiness shown in the cases invoking "necessity" clauses will inevitably exist in cases that China has been or may be involved. Given the fact that more and more cases have involved China and in order to protect the justified interest of China, this article summaries three revelations in combination with the burden of proof regarding to the "necessity" clauses:(i) China shall strengthen the generalization and research of previous cases in respect of "necessity"(including cases relating to "necessity" under GATS, TRIPS and other relevant agreements despite GATT);(ii) China shall take every effort to bare the burden of proof contained therein based on factors and rules revealed in previous cases; and(iii) given the significant of relevant facts and the balance between trade liberalization pursed by WTO and the justifiable and lawful control on trade taken by a member, China shall make efforts to well implement the lawful measures regarding to trade control.
Keywords/Search Tags:WTO, “Necessity” Clauses, Treaty Interpretation, Burden of Proof
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